Opinion
Case No. 00 C 5965
May 7, 2001
REPORT AND RECOMMENDATION
This case involves an unfair labor practice charge filed by G. Rabine Sons, Inc., ("Rabine") against the International Union of Operating Engineers, Local 150, AFL-CIO ("Local 150"). This matter is before the Court on Local 150's Motion for an Order Setting a Hearing on a Rule to Show Cause. For the following reasons, the Court recommends the motion be GRANTED in part and DENIED in part.
I. Procedural Background
On May 15, 2000, Rabine filed an unfair labor practice charge against Local 150, and on June 2, 2000 Region 13 of the National Labor Relations Board (the "Board") issued a complaint against Local 150 alleging violations of the National Labor Relations Act. The hearing date was set for August 21, 2000. On July 31, 2000, Local 150 requested and was issued subpoenas duces tecum pursuant to § 11(4) of the National Labor Relations Act, and § 102.111 of the Board's Rules and Regulations. Local 150 served a subpoena duces tecum upon Rabine requesting production of certain documents on July 31, 2000 and served another subpoena duces tecum upon the Congress of Independent Unions ("CIU") on August 14, 2000. On August 3 and 15, 2000, respectively, Rabine and the CIU filed their Petitions to Revoke Local 150's Subpoenas Duces Tecum.
On August 17, 2000 Administrative Law Judge ("ALJ") Nancy Sherman issued an order granting in part and denying in part Rabine's Petition to Revoke the Subpoena. In her order, she directed Rabine to produce documents in response to Rider Requests 1 through 7 for the period of two months prior to and two months after the execution of the May, 1999 CIU contract. As to Rider Request 8, the ALJ ordered Rabine to produce authorization and dues deduction cards to the CIU signed by Rabine employees between May, 1999 and May, 2000. The ALJ also ordered Rabine to produce all documents and notes relating to the bargaining involved in the May, 2000 CIU contract. As to Rider Request 9, ALJ Sherman ordered Rabine to produce all photographs, videotapes, and audiotapes relied upon by Rabine in making its charges against Local 150.
On August 18, 2000, the ALJ issued an order which granted in part and denied in part the CIU's Petition to Revoke the Subpoena Duces Tecum. In her order, she required the CIU to produce all documents responsive to Rider Request 1, and ordered the CIU, as to Rider Request 5, to produce all documents effective in the year 2000. The ALJ also ordered the CIU to produce documents responsive to Rider Requests 7 and 8 for the period of two months prior to and two months after the execution of the May, 2000 CIU contract.
At a hearing held on August 23, 2000, Rabine and the CIU stated that each would refuse to comply with the ALJ's orders and wait for Local 150 to seek enforcement in the United States District Court. On September 14, 2000, pursuant to § 102.31(d) of the Board's Rules and Regulations, Local 150 requested the Regional Director for Region 13 to institute proceedings in this Court to enforce Local 150's subpoenas in accordance with the ALJ's orders. On October 12, 2000, Applicant's Motion for an Order Setting a Hearing on a Rule to Show Cause was filed.
Local 150 entitles its motion a "Motion for an Order Setting a Hearing on a Rule to Show Cause" and in the first paragraph of its motion requests that this Court hold Rabine and the CIU in contempt for their failure to comply with the administrative subpoenas. However, in the prayer for relief at the end of the motion, Local 150 simply requests the Court order Rabine and the CIU to comply with the subpoenas. In its Reply brief, Local 150 recharacterizes its motion as an "Application Requiring Obedience to Subpoena Duces Tecum." Contempt is not an appropriate remedy at this point in these proceedings, in that there was no procedural mechanism under which Rabine and the CIU could appeal the ALJ's ruling. Rather, under 29 C.F.R. § 102.31 (d), they had to wait until Local 150 petitioned the General Counsel to seek enforcement of the subpoena in district court. Thus, under the applicable law cited herein, the only issue before this Court is the enforcement of the subpoena.
II. Facts
Rabine is engaged in the business of commercial and residential asphalt paving. In April 1997, between twelve and fifteen employees of Rabine filled out application cards for CIU representation. At that time, Rabine had between twenty to twenty-five employees. Dan Greteman ("Greteman"), the National Vice President of CIU met with Gary Rabine, the owner of Rabine Paving on April 22, 1997 where Greteman presented the signed application cards and requested verification that they were signed by Rabine employees. Greteman and Gary Rabine then negotiated a collective bargaining agreement which was to commence on May 1, 1997 and end April 30, 1998. Thereafter, the parties entered into subsequent agreements from May 1, 1998 through April 30, 1999, May 1, 1999 through April 30, 2000 and May 1, 2000 through April 30, 2003.Local 150 alleges there was no majority support for the contract with the CIU, as Rabine granted recognition to the CIU one month before the paving season begins. Therefore, Rabine had not recalled or rehired its full staff at that time, and the twelve to fifteen signatures did not constitute a majority of the entire collective bargaining unit. Local 150 also contends that when Greteman first presented the contract to the Rabine employees, it was rejected because it contained no benefits in the form of better wages, benefits, or working conditions, and required each employee to pay $25 per month in union dues. According to Local 150, Gary Rabine offered to increase Rabine employee's wages to offset the expense of the dues, at which point the employees agreed to the contract and it was signed. At each renewal, according to Local 150, the employees were not contacted to discuss the contract.
On or about May 15, 2000, Local 150 Business Representative Mike Kresge and Local 150 member (and Rabine employee) Scott Brubaker picketed at a Rabine job site and at the Company's office carrying picket signs stating "CIU Sucks," "Rabine Pays Low Wages and No Benefits," and "CIU No Good Gary No Good." Rabine contends that this picketing was for a recognitional purpose and therefore violative of 29 U.S.C. § 158 (b)(7)(A), and, on May 15, 2000, filed an unfair labor practice charge against Local 150.
III. Discussion
A. Standard of Review
Local 150 requests this Court to issue an order requiring Rabine and the CIU to fully comply with the Board's subpoenas duces tecum. The district court "has an extremely narrow scope of review of Board subpoenas in a proceeding such as this." National Labor Relations Board v. Brown Transport Corp., 620 F. Supp. 648, 651-52 (N.D. Ill. 1985). These proceedings are summary in nature and "defenses on the merits of an administrative charge may not be raised to block the enforcement of an administrative subpoena." Equal Employment Opportunity Commission v. A.E. Staley Manufacturing Co., 711 F.2d 780, 788 (7th Cir. 1983), cert. denied, 466 U.S. 936 (1984); Suburban Transit, 538 F. Supp. at 533. The district court should enforce an administrative subpoena, if it finds that "[t]he subpoena was issued pursuant to an investigation within the lawful authority of . . . [the Board], was not indefinite, and requested relevant information." Equal Employment Opportunity Commission v. Bay Shipbuilding Corp., 668 F.2d 304, 310 n. 7 (7th Cir. 1981); Equal Employment Opportunity Commission v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1987); Staley, 711 F.2d at 788.
B. Analysis
In this case, both parties fail to address the proper standard of review, and their briefs primarily focus on the merits of Local 150's defenses. The Board alleges that Local 150 picketed Rabine with a recognitional object when no question of representation could be raised. Local 150's defenses are that Rabine never legitimately recognized the CIU and therefore the CIU did not enjoy majority status in April 1997, and that the collective bargaining agreements were subject to Section 8(f) rather than Section 9(a) of the Act. Rabine and the CIU contend that these defenses are barred by a six-month statute of limitations set forth in Section 10(b) of the Act. In Local Lodge No. 1424 v. NLRB (Bryan Manufacturing Co.), 80 S.Ct. 822, 828 (1960), the Supreme Court held that under Section 10(b), a union's majority status cannot be challenged more than six months after the date of the original collective bargaining agreement. Because Local 150's defense is that the original April 1997 agreement, and therefore, all subsequent agreements, did not represent a majority of Rabine Paving employees, Bryan Manufacturing applies to bar this defense. Local 150 counters that, to prove a violation of § 8(b)(7)(A), Rabine and the CIU must first establish that a § 9(a) contract existed at the time of the unlawful picket, putting the status of the May 2000 contract squarely at issue.
Both Local 150 and Rabine assert that this Court should undertake a de novo review of the ALJ's decision. Rabine cites to NLRB v. CWI of Maryland, Inc., 127 F.3d 319, 330 (4th Cir. 1997), for the proposition that "[f]ederal courts review de novo the legal standards applied and legal conclusions rendered by the Board and administrative law judges of the Board." (Rabine's Resp. at 8.) However, CWI of Maryland did not involve enforcement of a subpoena, but rather a petition to the Fourth Circuit for enforcement of an order which affirmed the decision of an ALJ who found that CWI of Maryland had committed unfair labor practices. As the Court finds there is no legal basis for parties' agreement that a de novo standard of review applies, it considers this motion under the more narrow standard of review as it has been articulated by the courts in this circuit.
The Court finds that these arguments are simply beyond the scope of its review. Generally, provided the investigation is within the administrative agency's authority, the subpoena is not too indefinite, and the information sought is reasonably relevant, the district court must enforce an administrative subpoena. Tempel Steel, 814 F.2d at 485. Rabine and the CIU do not claim that the subpoena is indefinite or that the subject matter of the subpoena is outside of the agency's authority. Their arguments could be construed as asserting lack of relevancy, given that Local 150 seeks to challenge the CIU's majority status well past the six-month bar established in the Bryan Manufacturing case. However, even when the information sought by a subpoena relates to claims or defenses which may be barred, courts have upheld enforcement of the administrative subpoena. In Tempel Steel, the Court of Appeals held that an allegation that an EEOC charge is untimely is not a sufficient defense to block enforcement of an EEOC subpoena. Id. at 485. This is analogous to Rabine and the CIU's arguments as to why Local 150's subpoena should not be enforced, in that they argue that the subpoenas are invalid because the underlying defenses are time-barred. However, "[i]f every possible defense, procedural or substantive, were litigated at the subpoena enforcement stage, administrative investigations would be subjected to great delay." Id.
Based upon the "extremely narrow" scope of this Court's review, and the Court's reading of the Tempel Steel case, this Court finds that Local 150's subpoenas duces tecum should be enforced.
IV. Conclusion
For the reasons set forth above, the Court recommends that Local 150's Motion for an Order Setting a Hearing on a Rule to Show Cause be GRANTED in part and DENIED in part. To the extent the motion requests this Court to order compliance with ALJ Sherman's August 17 and August 18, 2000 orders enforcing portions of Local 150's subpoenas duces tecum, the motion should be GRANTED. To the extent the motion requests a hearing on a rule to show cause or a finding of contempt it should be DENIED. Any objections to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this notice. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636 (b)(1). Failure to object constitutes a waiver of the right to appeal. Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir. 1995).